In most ancient societies, law and government were intertwined. Each ruler passed new laws and struck down old ones to suit his own needs and beliefs. However, Roman law gradually developed as a field of its own, not merely as an extension of the will of rulers. The Roman concept of law has greatly influenced the judicial systems of many modern societies.
The Lawmakers. From 753 to 510 B.C., Rome was ruled by a series of kings, who held supreme authority and were responsible for creating most of the laws. Law, based largely on Roman custom, was used to settle disputes between families or to resolve religious controversies. During the Roman Republic* *, the powers formerly held by the king were placed in the hands of two government officials called consuls. New laws were proposed by the consuls and voted on by an assembly of male citizens. During the early Roman Empire, the emperor Augustus withdrew the power to make laws from the assembly and gave it to the Senate. Augustus established the practice of rule by imperial* decree—meaning that the emperor’s proclamations, when confirmed by the Senate, became law. Later emperors gradually reduced the Senate’s authority. By A.D. 200, decrees became law without Senate confirmation, and the emperor had become the supreme legal authority in Rome.
* Roman Republic Rome during the period from 509 B.C. to 31 B.C., when popular assemblies annually elected their governmental officials
* imperial pertaining to an emperor or empire
The Praetor's Edict. Around 450 B.C., the laws of Rome were partially written down into a body known as the Twelve Tables. For about the next 250 years, the Twelve Tables were subject to interpretation by a board of pontiffs, or priests. In 367 B.C., the power to pass judgment under the law passed from the consuls to a new magistrate known as the praetor. Although praetors could not make laws themselves—the assemblies had that authority—they could issue edicts*. An edict was a proclamation that indicated how the praetor planned to interpret the law during his term of office, which lasted one year. Since the praetor needed no outside approval for his edict, this gave him the freedom to interpret existing laws and to decide situations in which the law was unclear. A praetor’s edict was valid only during his term of office, but newly elected praetors usually adopted the edicts of their predecessors, although occasionally with some changes. Edicts, therefore, were considered law, and they became critical to the evolution of the legal system during the republic.
* edict proclamation or order that has the force of law
The Law. In Roman law, there was a crucial distinction between public, or criminal, law and private, or civil, law. Public law concerned the workings of government, the creation of laws, and the determination of which crimes were deemed to be against the interests of the state, rather than against individuals. During the republic, questions of public, or criminal law, were decided by citizens selected as jurymen.
Private or civil law, on the other hand, dealt with cases involving ownership, debt, assault, and other disputes between private citizens. (Civil comes from the Latin word for citizen, civis.) In early Rome, the ius Quiritium (“rights of citizens”) excluded all foreigners. By tradition, the father was the supreme power within the family, and the state rarely interfered in domestic matters. During the republic and the early empire, as Rome’s commercial interests grew, the old Roman civil law was expanded. The Romans applied ius gentium (“law of the nations”) to the lands they conquered. Legal agreements by mutual consent could now be made between Roman citizens and foreigners. Roman civil law, which was codified* by the emperor Justinian, greatly influenced later Western law.
* codify to arrange according to a system; to set down in writing
Criminal Law Cases. The oldest Roman laws addressed only exceptional crimes against the state—treason, desertion to the enemy, or special forms of murder. By the era of Sulla’s reforms in the Roman Republic, around 80 B.C., the list of public crimes had been expanded to include more serious offenses against life, such as serious injury, or against private interests, such as the falsification of wills and documents. Serious moral violations, such as adultery, came to be considered public crimes as well.
Each standing court in Rome (called quaestiones perpetuae) was presided over by a praetor. A jury was assigned to each case. The presiding praetor kept order during the trial, but he did not interpret the law or address or instruct the jury. The jury voted without deliberation. If found guilty, a person was required to pay a sum of money—the amount determined by the praetor. Politics and bribery sometimes influenced the legal process, and persuasive speeches were used to try to sway the jury’s opinion. The famous Roman statesman Cicero, for example, delivered all his judicial orations* before the criminal courts.
Punishment for public crimes was severe. Under the Twelve Tables, criminals were burned if convicted of arson, crucified* for using magic on crops, or drowned in a sack for murdering a parent or close relative. During the republic, a convicted criminal might avoid execution by going into exile*. During the empire, convicted persons had some or all of their property confiscated and their citizenship revoked. They might also be condemned to labor in public works or in the mines. Working in the mines was considered the most severe sentence of all—second only to a sentence of death. Imprisonment was not used as a punishment. By the early A.D. 100s, penalties for the same crime often varied according to the convicted person’s social status. Persons of lower rank were often punished more severely than those of higher rank.
* oration formal speech or address
* crucify to put to death by binding or nailing a person’s hands and feet to a cross
* exile forced absence from one’s homeland; banishment
Civil Law Cases. Civil trials were decided by a iudex, who was assigned by the praetor. The iudex was a private citizen who knew the law, and whose judgment both parties agreed to accept. His recommendation to the praetor was then given formal confirmation by the praetor and became binding.
The basic judicial procedure of trial suits between citizens (called legis actiones, or “actions in law”) was a two-step process. A person first presented his case before a magistrate using a specific language known as a formula. This stage was intended to determine the nature of the case. The formula for each type of case was very precise and, unless the correct wording was used, the case might be dismissed before it ever went to trial. In the second stage, the magistrate appointed (with the agreement of both parties) a private citizen to act as judge and to rule on the case, subject to the magistrate’s approval.
A new procedure, called the formulary system, was established around 177 B.C. to allow greater flexibility in the first stage of the judicial process. Under the formulary system, the disputants in a lawsuit met with the magistrate to draw up a formula, or statement of the precise dispute or law, based on the specific case. Only when the formula was agreed upon by both parties did the case go before a judge. The new system ensured that complex legal language was not a barrier to justice, and it allowed for the creation of new formulas beyond those recorded in the Twelve Tables or those that had been added since.
During the empire, a magistrate or other delegated official conducted the investigation. There were no stages in the process and no private iudex. There was, however, the possibility of appealing a decision, which had been unavailable during the republic. Appeals could be made to a higher court or to the emperor, and original decisions were sometimes overturned.
The Jurists. The people who probably exercised the greatest long-term influence on Roman law were the jurists. Jurists held no official positions, but they were experts in the law. They gave unpaid legal advice to private citizens, judges, and magistrates. In early Rome, legal interpretation had been the duty of the pontiffs, who had come from the patrician* class. By the first century B.C., prominent jurists were usually knights of the equestrian order*, rather than senators.
During the empire, Augustus encouraged the separation of law from government and politics. He established a special class of jurists, known as jurisconsulti, who had the power to interpret the law and were backed by the emperor. Under the emperor Hadrian, who ruled from A.D. 117-138, the opinions of the jurists were officially given the force of law in any case in which they reached a unanimous opinion. Where the jurists’ opinions differed, a judge was free to choose which opinion to follow.
* patrician member of the upper class who traced his ancestry to a senatorial family in the earliest days of the Roman Republic
* equestrian order second rank of the Roman upper class, consisting of wealthy landowners whose social position entitled them to claim eligibility for service in the cavalry
Later Developments. The period from A.D. 100 to A.D. 250 is known as the classical period of Roman law. In addition to the increase in the authority of jurists’ opinions under the emperor Hadrian, other developments helped establish the independence of Roman law. In A.D. 131, the edicts of the praetors were collected and made binding. In A.D. 212, the emperor Caracalla extended Roman citizenship to all free inhabitants of the empire, which largely eliminated the legal distinction between Romans and the people who lived in provinces. This period also produced the great jurists Papinian, Gaius, Paulus, Ulpian, and Modestinus, whose opinions greatly influenced Roman law.
ROMAN DIVORCE LAWS
In classical Athens, a man was allowed to divorce his wife without cause. However, in early Rome a divorce was more difficult to obtain. Before about 230 B.C., a Roman man could divorce his wife only for adultery, tampering with keys, or poisoning a child. If he abandoned her for any other reason, he had to give her half of his property and forfeit the remainder to Ceres, the earth goddess. Later, it became possible for both a husband and a wife to obtain a divorce for any reason.
By A.D. 342, the formulary system, which had determined judicial procedure for more than 500 years, was replaced with a new system called extraordinary procedure. This system eliminated the written formula, so that most proceedings were conducted in a single process. The Law of Citations, passed in A.D. 426, confirmed the opinions of the five great jurists of the classical period. In cases in which their opinions differed, the majority opinion was followed. When the jurists were equally divided, the opinion of Papinian was followed. Only if Papinian issued no opinion on a particular case could a judge choose the opinion he favored. This limited the power of judges to choose the opinion that suited their own beliefs.
Even during the later years of the Roman Empire, when the empire itself declined rapidly, Roman law continued to show strength and flexibility. An updated collection of laws, the Theodosian Code, was published in A.D. 428, and this code was declared the sole source of law. After the Western Roman Empire fell in A.D. 476, the legal system continued to evolve in the Eastern Empire. The emperor Justinian I produced an updated code of laws in A.D. 529, as well as a digest of civil law and a collection of opinions based upon the rulings of the jurist Gaius. These works remained the basis of law in the Eastern Empire until its fall in A.D. 1453. (See also Aedile; Class Structure, Roman; Government, Roman; Imperium; Law, Greek.)